Part 2Jurisdiction of SAET—special provisions

Chapter 2—Jurisdiction of SAET—special provisions Part 1—Conferral of jurisdiction, declarations and orders 7—Jurisdiction of SAET SAET has the jurisdiction conferred by this Act— (a) to adjudicate on rights and liabilities arising out of employment; and (b) in relation to industrial matters— (i) to approve enterprise agreements regulating remuneration and other industrial matters; and (ii) to make awards regulating remuneration and other industrial matters; and (iii) to hear, determine and regulate any matter or thing arising from or relating to an industrial matter; and (c) to settle and resolve industrial disputes. 8—Jurisdiction to interpret awards and enterprise agreements (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to interpret an award or enterprise agreement. (2) In exercising its interpretative jurisdiction— (a) SAET should have regard to any evidence that is reasonably available to it of what the author of the relevant part of the award or enterprise agreement, and the parties to the award or enterprise agreement, intended it to mean when it was drafted; and (b) if a common intention is ascertainable—give effect to that intention. 9—Jurisdiction to decide monetary claims under industrial laws or instruments (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims of the following kinds: (a) a claim for a sum due to an employee or former employee from an employer or former employer under this Act, a workplace law, an award, an enterprise agreement or a contract of employment; (b) a claim for a sum due to an employer or former employer from an employee or former employee under this Act, a workplace law, an award, an enterprise agreement or a contract of employment; (c) a claim for compensation to an employee or former employee from an employer or former employer for failure to make contributions (before or after the commencement of this Act) for the benefit of the claimant to a superannuation fund; (d) a claim for payment of a benefit against the trustee of a superannuation fund to which contributions have been made. (2) However, a claim cannot be made under subsection (1) in respect of a sum due under a workplace law if that workplace law confers jurisdiction on a court in respect of the claim. For example, a claim for a sum due under the Long Service Leave Act 1987 must be brought under section 13 of that Act and not under section 9(1) of this Act. 10—Jurisdiction to hear and determine questions arising under contracts of employment (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine any question, action or claim founded on, or otherwise arising out of or in relation to, a contract of employment (including a contract of employment that has been terminated) including (but not limited to)— (a) a claim for damages with respect to a breach of a contract of employment (including a claim where the employee under a contract of employment has been dismissed); and (b) a claim to recover a liquidated sum or debt under a contract of employment; and (c) an action for an order for specific performance; and (d) an action for the grant of an injunction. (2) Subject to subsection (4), the South Australian Employment Court may, in exercising its jurisdiction under this section— (a) make an order for specific performance against an employer or an employee under a contract of employment; (b) grant an injunction, or give equivalent relief, against an employer or an employee under a contract of employment even if to do so would effectively require specific performance of a contractual term against the employer or employee; (c) award damages against a party to a contract of employment on account of the manner of a breach of the contract (including where the breach constitutes or gives rise to a termination of the contract); (d) award damages and also provide a remedy by way of an order for specific performance or an injunction. (3) Subject to subsection (4), if the South Australian Employment Court is satisfied that it would best serve the interests of justice in a particular case, the Court should provide for specific performance or an injunction as a remedy— (a) even if such a remedy is in addition to, or in substitution for, an award of damages; and (b) even if, but for this subsection, only damages would be awarded. (4) The South Australian Employment Court— (a) should not, except in exceptional circumstances, in exercising its jurisdiction under this section— (i) make an order for specific performance against a natural person; or (ii) grant an injunction, or give equivalent relief, against a natural person under a contract of employment, if to do so would— (iii) effectively require an employer to reorganise, to a material extent, his or her undertaking; or (iv) effectively prevent an employee from obtaining other employment; and (b) in considering the interests of justice under subsection (3), should take into account— (i) the length of time that elapsed between the time when the cause of action in the proceedings arose and the time when the proceedings were commenced; and (ii) the extent to which there no longer exists mutual confidence in the employment relationship between the employer and the employee; and (iii) the extent to which there is evidence that compliance with an order for specific performance or an injunction would be impracticable or cause undue hardship, including, in the case of an employer, by taking into account the size of the employer's undertaking and the circumstances of the particular employment situation, and may take into account such other matters as the Court thinks fit. (5) Subsection (4)(a)(iv) does not apply so as to limit the orders that the South Australian Employment Court may make in relation to a restraint of trade clause in a contract of employment that is enforceable at common law. (6) The costs in any proceedings under this section will be awarded on the same basis (and in accordance with the same rules) as costs would be awarded in a corresponding civil action or claim brought in the District Court or the Magistrates Court (as the case may be). (7) This section does not limit the operation of section 9. (8) This section does not limit the operation of the Return to Work Act 2014. (9) In this section— contract of employment means a contract recognised at common law as a contract of employment. 11—Jurisdiction to settle and resolve industrial disputes (1) SAET (constituted as an industrial relations commission) has jurisdiction to settle and resolve industrial disputes. (2) In exercising its dispute settlement jurisdiction SAET may deal with a dispute as it considers appropriate including by any of the following: (a) conciliation or mediation; (b) making a recommendation or expressing an opinion; (c) arbitration. 12—Orders to remedy or restrain contraventions (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to order a person who contravenes or fails to comply with a provision of this Act, an award or an enterprise agreement— (a) to take steps, specified in the order, within a time specified in the order, to remedy the contravention or non‑compliance; or (b) to refrain from further contravention of, or non‑compliance with, the provision. (2) If there are reasonable grounds to believe that a person is about to contravene or to fail to comply with a provision of this Act, an award or enterprise agreement, SAET has jurisdiction to order the person to refrain from the contravention or non‑compliance. 13—Advisory jurisdiction (1) SAET (constituted as an industrial relations commission) has jurisdiction to inquire into, and report and make recommendations to the Minister on, a question related to an industrial or other matter that is referred to SAET for inquiry by the Minister. (2) The jurisdiction conferred on SAET under subsection (1)— (a) is not to be assigned to the South Australian Employment Court; and (b) does not extend to inquiring into the South Australian Employment Court or matters that may be brought before the Court or that are being dealt with, or have been dealt with, by the Court. Part 2—Processes associated with industrial matters and disputes